The Nixon that lurks in Obama

Warring presidents tend to endanger the rule of law

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Richard Nixon got governing wrong, very wrong, and went so far in ignoring legal prohibitions that distraught opinion jettisoned him from the White House. Though far removed from Nixonian criminality, President Barack Obama seems the least inhibited violator of constitutional safeguards since then, and he just might get away with it unless we as a people still care about such things.

The Nixonian failings were summed up in "The Imperial Presidency," a 1973 book written by Arthur Schlesinger Jr., an outspoken historian who served in the White House during the Kennedy administration. He argued it was growing war powers in a turbulent world that led to expanded domestic abuses of foundational principles.

These principles, these grand doctrines that have to do with liberty, justice, orderliness and governmental limits, are well summed up by the phrase "rule of law." In a republic, it means that representatives of the people determine laws that will govern not just us, but also the government leaders themselves.

A far more trustworthy arrangement than allowing a few arbitrarily to impose their druthers on the rest of us, the rule of law was made a special wonder in America by our Constitution. It pledges in amendments to protect our individual rights and masterfully divides up power so that one part of government over here checks and balances another over there.

Schlesinger's concern was the imbalance of presidential power that had kept growing and growing until it got entirely out of hand in the Nixon years. His was an administration that followed others in promulgating war acts Congress had not approved, that avoided enforcing laws through varied devices and grossly overstepped still other bounds, ultimately even plotting a burglary. It was as if the only curb on a president was an election every four years, Schlesinger said.

Our democracy did finally catch up with Nixon. I can in fact remember people happily saying after he resigned that "the system works." But does it?

In Barack Obama, we have a president who, among multiple other constitutional bombardments, forgot Congress in his revisions of at least three American laws and made appointments to the National Labor Relations Board and a newly established Consumer Financial Protection Bureau without Senate approval. A president can so act under law if the Senate is in recess. The Senate -- by a determination only it can make -- was not in recess at the time.

There's a dismaying incongruity here. These two agencies have extraordinary authority, are answerable to hardly anyone or anything, and issue massive gobs of rulings on matters large and small, itself a mighty march from the sensitivities that inspired a revolution. Meanwhile, the man making the appointments is mainly regulated by a Constitution with relatively few rules and can't get them straight, even though he could potentially visit far more catastrophe on us than those citizens the agencies are aiming to control.

The D.C. Circuit Court of Appeals has now ruled that Mr. Obama acted as if he can appoint people to such positions whenever and however he pleases, and flatly says: "This cannot be law."

Hurrah, but don't suppose this ruling is the final word or that Mr. Obama won't yet sneak past the law on this and far more, a thought that brings us back to the Schlesinger book.

The last chapter, written three decades ago, frets about future presidents -- meaning presidents of more recent times -- and what it will take to keep them reasonably in tow. The answer, Schlesinger believes, is a public spirit that shakes hands with the spirit of the Constitution. He then quotes the 19th-century poet Walt Whitman, who said tyranny can enter this country any time it chooses and that there is just one "bar against it," namely a "resolute breed" of Americans.

We are either vigilant, demanding rule of law, or we aren't, in which case we won't get it.